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Blowing whistle on Navy recruitment policy proves costly

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.

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If people are rewarded for persistence, then Lt. Jason Hudson, SPHR, is due a huge payoff. The military recruiter has been at the center of a whistleblower and reprisal controversy with the U.S. Navy for more than four years. Although the Navy considers the matter closed and fully resolved, Hudson has a much different opinion, and he is not alone.

Hudson’s troubles began in October 2002 when a new recruiting initiative was handed down by his superior officers. The policy limited the number of minority applicants who would be accepted if they scored below average on the battery of aptitude tests given to every person who wants to enlist. No such limit applied to white candidates.

Hudson saw a huge flaw in the policy—a flaw so big that you could sail an aircraft carrier right through it. By forcing recruiters to reject minority candidates who have had scores identical to white recruits who would be accepted, he believed, the Navy would be violating federal law.

Hudson went to his commanding officer and explained his concerns, asking that the policy be changed. When he was told that he must continue to implement the policy, he took his concerns to a Navy investigative panel, believing that his action was the only reasonable course. The policy was changed not long thereafter, but Hudson says that the reaction from his superior officers has left his career foundering.

“I know I did the right thing and would make the same choice today,” he said. “I’d really like to know why I am still being punished for trying to right such an obvious wrong.”

Several members of Congress are puzzled by Hudson’s treatment by the Navy and wonder why he was punished for questioning a discriminatory recruitment policy. Rep. Jim Cooper, D-Tenn., believes so strongly in Hudson’s case that he has announced his intentions to introduce legislation to reform the military whistleblower laws. Cooper sent a letter in September 2005 to the Department of Defense Inspector General’s office asking it to look into the case.

Inquiries ‘stonewalled’

Cooper, a member of the House Armed Services Committee and the Subcommittee for Oversight and Investigations, says explanations from the Navy about Hudson’s treatment have been far from satisfactory. He has stated that inquiries from his office have been “stonewalled.”

Members of his staff say Cooper doesn’t agree with the Department of Defense Inspector General’s conclusion that Hudson was not a victim of reprisal. Officials with the Navy contend that they have cooperated fully with Cooper’s office and will continue to do so if the congressman makes any further requests.

“One congressional inquiry regarding this case was addressed in the fall of 2005,” said Lt. Justin Cole, a public affairs officer for the Chief of Naval Personnel “There have been no further official congressional inquiries received regarding this case. If or when we do receive an official congressional inquiry, it will be responded to appropriately.”

Hudson says his story should interest HR professionals in that it revolves around recruiting and personnel policies gone bad. Hudson is a student member of the Society for Human Resource Management at the University of Tennessee in Knoxville, where he is enrolled in a master of business administration program with an emphasis on HR management. The irony is that he was recommended for the program by his superior officer.

After serving as an enlisted man during the Gulf War, Hudson attended an officer’s training course at Vanderbilt University. He began working as a recruiting officer with the Nashville, Tenn., district after completing the program. He found that he liked the job.

But Hudson fears that he may be forced out of the Navy by the end of 2007. His career goal was to retire after 25 years of active duty—he is going on 15 years now. He says his motivation is only to make things right. It’s “purely a matter of principle and fair treatment.”

Hudson believes that the Navy’s handling of his case serves as a cautionary tale for all HR professionals and their employers—especially large organizations with inflexible policies.

“I love the Navy, and I am totally dedicated to doing the best that I can,” Hudson said. “My goal is to make sure when someone does what is right that they don’t end up getting adversely affected like me.”

‘It clearly discriminated’

As soon as Hudson learned of the new recruitment policy in 2002, he had concerns. By following the directive to cut back on minority candidates with low test scores, Naval recruiters could still accept any white candidates who scored in the lower category. You could have two candidates with equal scores, and yet you had to reject one based on his ethnicity.

According to Hudson, the Navy’s objective in implementing the policy was to increase the number of minority recruits who scored above average and were placed into what military recruiters called “the higher mental group” category. The ultimate goal was to increase diversity at all levels of rank within the Navy, and Hudson is quick to point out that Naval officials had no malicious intent when formulating the policy.

“To me, it clearly discriminated against minority candidates. The intention may have been a good one. But, in practice, it was a terrible idea and, in my mind, a totally illegal recruitment policy,” said Hudson. At the time of the directive, he was heading the recruiting efforts for enlisted personnel in parts of five states, which encompassed the Nashville district.

“I thought the policy broke federal discrimination laws in several different ways and that it would open the Navy up to some very serious liability issues, so I decided that I needed to speak out,” Hudson said.

Hudson went to the commanding officer (CO) of the Nashville recruiting district, but he says the CO told him to follow the policy as given. An investigation by the Navy revealed later that recruiting officers from other districts had expressed the same concerns as Hudson about the new policy.

In mid-November 2002, Hudson went over his CO’s head and filed a complaint about the policy with the U.S. Navy equal opportunity adviser, the military’s equivalent of an investigator with the Equal Employment Opportunity Commission. Three days after filing the complaint, Hudson was relieved from his duty as head of enlisted recruiting in Nashville.

“I know [that complaining] was the right choice to make, because this policy was flat-out wrong. What I didn’t imagine is that I would be punished for doing the right thing,” Hudson said.

Within six weeks of Hudson’s initial complaint, the Navy rescinded the recruiting policy nationwide. However, a report later issued by the Pentagon said that the policy was justified and an example of “lawful discrimination.” Hudson disagreed, but he took comfort the belief that he had done the right thing—and felt vindicated when the controversial recruitment policy was halted.

Not long after the Pentagon issued its report, the Navy’s Inspector General’s office concluded that the recruiting directive was “legally indefensible,” adding that the Navy should have investigated whether the policy had adversely affected minority recruits.

Instead of receiving a commendation for bringing the flawed policy to light and possibly saving the Navy from costly claims of racial discrimination, Hudson says, the actions of his superior officers baffle him to this day. Two months after filing the complaint and being replaced as head of enlisted recruiting, Hudson says, he was taken to task for going “outside the chain of command.” Hudson then received a poor rating on his annual performance evaluation and was given what the Navy calls an “adverse fitness report."

Performance praised, then faulted

Since joining the Navy in 1991, Hudson consistently had excellent performance evaluations and had received the highest of fitness ratings. After his poor evaluation, Hudson was passed over for promotion to lieutenant commander despite winning an “officer of the year” award in the Nashville district and other stellar evaluations that praised his job performance.

“The only real black mark on my record is that poor fitness report,” Hudson said. “And when it comes time for promotions, the one bad evaluation could mean the difference between me receiving a promotion or another officer who has a similar service record.”

Any officer passed over twice for promotion normally is asked to resign their commission. Hudson says his chances for promotion remain bleak as long as the poor evaluation stays on his record.

“It’s really clear if you look at Lt. Hudson’s Naval career that the adverse rating is an aberration. It just does not fit or make any sense with the rest of his service record,” said Ross Booher, a lawyer with the Nashville law firm of Bass Berry and Sims and a former attorney with the U.S. Navy.

Hudson and Booher attended Vanderbilt University together, and Booher agreed to take the case on a pro bono basis. He said he believes that Hudson has a strong whistleblower or reprisal case against the Navy and says he will pursue any avenue needed to ensure that the aberrant evaluation is expunged from Hudson’s record. However, officials with the Navy and the Department of Defense (DOD) disagree with Booher and say the case is closed.

According to Naval officials, Hudson’s case was investigated thoroughly by the Navy Recruiting Command Inspector General (IG) and the Bureau of Naval Personnel IG. The case has also been reviewed review by the DOD’s IG office.

The options now appear limited to Hudson and Booher, who are working with Rep. Cooper’s office to have the case reviewed again. But time may be running out for Hudson, who is up for another performance review during the summer of 2007.

‘Set the record straight’

“I am not out to sue anyone or try and collect any damages or anything like that,” Hudson said. “My goal is just to set the record straight and make sure that other Navy personnel never have to face what I’ve gone through.”

Officials with the Navy still contend that Hudson was not singled out for his action. And they say he was not the first to bring the flawed recruiting policy to their attention. According to Lt. Cole with the Naval Chief of Personnel’s office, when Hudson filed his complaint, “the matter had already been brought to the attention of the chain of command by another source, and the policy was already in the process of being changed.”

Still, Cooper claims that he will follow through and that he plans to introduce legislation that would reform the military’s whistleblower rules and revamp the investigation procedures. If Cooper’s proposed reforms are enacted and real change is made, Hudson says, then at least he will have the satisfaction of knowing that he helped improve military whistleblower rules and helped make the Navy a better organization for future enlisted personnel and officers.

“Helping to make the Navy become better has been my goal all along,” he said.

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.